Long-time followers of this website will recall a few articles dealing with the issues surrounding legislation and morality – and should remember the false alternative discussed in the articles pertaining to the alleged “both sides” of the issue.
Two of these articles used current and real-life examples of tyrannical “moral” statutes in foreign nations in an attempt to shed some light on similar issues closer to home among the united States. These articles specifically dealt with “anti-homosexual” legislation in the countries of Nigeria, Uganda, and Russia. (see here, here, and here)
Well, as of August 1st, news has come from Uganda that the nation’s Constitutional Court invalidated the controversial “anti-homosexual ‘law'” based on a constitutional technicality. Although the arguments coming from the ten petitioners dealt with reasons such as “privacy” and “human rights”, those arguments were not addressed, and the basis of the ruling was the clear violation of constitutionally prescribed parliamentary procedure.
Under the currently void statute, individuals could be, and were being punished and imprisoned for engaging in, or even “promoting” homosexuality, including life imprisonment as a penalty for “aggravated homosexuality”, which, although the emphasis was on any person with HIV, could even include repeated homosexual relations between consenting adults or “serial offenders”. Earlier versions of the bill even went so far as to punish people for not reporting such activities if they were to come across them (which could constitute “aid”), and even included the death penalty as punishment for homosexuality.
The technicality which served as the basis of the striking down of the statute involved the Speaker of the House rushing through the legislation without the constitutionally required quorum of the parliament (in this case, 1/3 of all the members ), as found in the Constitution of the Republic of Uganda. In fact, sources report that in the session in which the measure was rushed through, there were even three objections based on this same constitutional provision! Following the obviously unconstitutional passage of the bill, President Museveni promptly signed the legislation, perhaps even in an attempt to build popular support for his own re-election.
Although issues such as these are good for thinking through the issues of morality and legislation, perhaps this is a good time for a different, though related, issue. Perhaps to even use this issue to show how a Constitutional system with an independent judiciary can work in protecting the rights of the people. In fact, on a deeper level, it shows how the form of civil government built on procedural technicalities in a manner which involves a calculated level of inefficiency, can result in more freedom for the people.
Whether or not this is the case more times than not, or whether the benefits of the system outweigh the costs (or even potential costs) is a separate issue.
AN INDEPENDENT JUDICIARY – IN PRINCIPLE
Although discussed in principle by many prior philosophers (including Montesquieu himself), an independent judiciary, in practice, would be, at the time, uniquely built, in practice, among the American systems of government. Even in the Delaware Declaration of Rights and Fundamental Rules of September 1776 – it declares in Section 22 that “the Independency and Uprightness of Judges are essential to the impartial Administration of Justice, and a great Security to the Rights and Liberties of the People.”
An Independent Judiciary was definitely an American goal for a form of good government. In fact, in the Noah Webster 1828 Dictionary, the first major American English Dictionary, it even states under the term judiciary that: “An Independent Judiciary is the firmest bulwark of freedom”.
The theme of a desire for judicial independence was firmly found in an essay entitled Thoughts on Government – which was written by John Adams, in the spring of 1776, as advice for North Carolina in the drafting of their Constitution. In it, Adams states:
“The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the house of representatives, should impeach them before the governor and council, where they should have time and opportunity to make their defence; but, if convicted, should be removed from their offices, and subjected to such other punishment as shall be thought proper.”
The key themes of this outline and call for an independent judiciary – which would forever change the shape of the American themes and systems of civil government, are:
1) A separate branch of government, or an independent constitutional creation – in addition to the independent function of judicial power, itself. In other words, Separation of Powers and equal footing via an equal constitutional creation.
The idea is to have a Court system that is not merely the creature of the executive or legislative bodies of government – and is thus accountable to their creators, if you will. Even William Blackstone, in his seemingly eternal influence on the legal mind as found in his Commentaries on the Laws of England, states that: “Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state.” (Vol. 1, pp. 259-60)
2) “Good Behavior” Tenure.
Alexander Hamilton, in the Federalist, stated that “[t]he standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government.” He states that:
“inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.”
In addition to this point, James Wilson, a former delegate to the Constitutional Convention of 1787, stated a corollary argument during the Pennsylvania Ratifying Convention in which he stated that:
“The servile dependence of the judges, in some of the states that have neglected to make proper provision on this subject, endangers the liberty and property of the citizen; and I apprehend that, whenever it has happened that the appointment has been for a less period than during good behaviour, this object has not been sufficiently secured; for if, every five or seven years, the judges are obliged to make court for their appointment to office, they cannot be styled independent.”
3) The Constitutional Security of the compensation of Judicial officers.
One of the grievances named in the Declaration of Independence was that the King had “made Judges dependent on his Will alone for the tenure of their offices, and the amount of payment of their salaries.” This grievance was aimed at the British monarchical tendency to politically intimidate judges who thought to rule against the Crown’s interests by their control of their pay, or even just their removal. This system, as a consequence, had an incentive structure that was less in favor of justice, and more in favor of a particular interest. After all, in the words of Alexander Hamilton in the Federalist No. 78, “a power over a man’s subsistence amounts to a power over his will”.
AN INDEPENDENT JUDICIARY – IN FORM
Although the principle of judicial independence was promoted by John Adams in his essay Thoughts on Government, he was able to more directly help to implement the idea into a form of civil government via the Constitution of the Commonwealth of Massachusetts, of which he was the primary author.
It is true that earlier state Constitutions had implemented these ideas, including Virginia and Maryland – both of which have “good behaviour” standards, and in the case of Virginia specifically, a “fixed and adequate salary” standard.
[By the way, is it any wonder that John Adams personally sent his friend and political ally, Patrick Henry, a copy of Thoughts on Government during the time of the construction of the Virginia Constitution? In response to a letter Patrick Henry wrote Adams in which he mentioned “the grand work of forming a constitution for Virginia is now before the convention” – Adams, “as a token of friendship”, responded with a copy of his very influential essay. In fact, Patrick Henry stated he had read it with “great pleasure” and even had the Virginia Gazette publish the essay – which was influential in the Virginia Constitutional Convention. (source: here)]
Yet the fact remains that the Constitution of the Commonwealth of Massachusetts (although amended over a hundred times) was not only the model for the United States Constitution, but is one of the oldest currently functioning Constitutions in the world. (source: here, and here)
As was above elaborated, the relative independence of the judiciary (esp. in relation to the British System the Americans seceded from) was not established merely in it’s being a separate body constitutionally. It was also found in the lack of constitutional authority of the legislative or executive bodies to sway judges based on control of their compensation, as well as by a “good behavior” provision (which is, potentially, a life-long standard for tenure) – to say nothing of the high standard for impeachment.
The idea was/is to build constitutional procedural protection for the courts so that if they even rule against what is currently popular, or in favor of something or someone who is currently not popular, there cannot be any constitutionally sanctioned authority for politically motivated retaliation coming in the form of impeachment, diminished pay, or even a threat against the position itself. The goal is to build a structure wherein the incentives, even for the most self-interested, are more in favor of the protection of freedom than not! And, in terms of tenure, the realization was that – perhaps to even create a limit of twenty years, the incentive toward the end of the tenure would be to please the political class that then would have power to pick or choose whether or not to re-appoint or select those judges.
These procedural roadblocks to the ability for other persons in government to create a political bully pulpit under which justice is less likely to reign in the court system, were made in an attempt to create a judiciary more accountable to Constitutional principles, hypothetically established “by the people” (or, at least, for the people via the protection of their individual freedom), than to the political whims of the moment, the other branches of government, or even to a powerful majority or loud minority of the populace. As Alexander Hamilton noted in The Federalist No. 78, “it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community”, and thus, the incentive structure should be carefully analyzed in regards to the forms thus created by Constitutions.
Perhaps, in this case, the emphasis on parliamentary procedure, instead of the bulk of the petitioners’ arguments based on “Human Rights” shows a lack of such a “fortitude” in the Ugandan Constitutional Court. But, that being said, the news reports still are full of what the petitioners still see as a victory for these previously legally threatened members of the Ugandan populace. The results, although perhaps less meaningful given the lack of desired reasoning by the petitioners, are the same, are they not?
For those that often use arguments that illustrate a disdain of the courts, in and of themselves, for their lack of “direct accountability”, which ironically are often the very same people that publicly pronounce (with good reason) the fact that the founders were setting up a Republican system of government, and not a purely democratic one – Would not the creation of the courts be an evidence of that very republican form? Doesn’t having an independent judiciary obviously demonstrate the attempt to create a system accountable to principle, as opposed to public opinion?
There is much irony in many “conservative” circles in their baseline assumption of acceptance of the U.S. Constitution as being superior ( and even “necessary” in response to) the less-centralized Articles of Confederation – and then, in the same breadth, being so critical of the judicial form that was one of the defining differences between the two documents. The Articles of Confederation had no Judicial Branch at all – let alone one that was relatively independent.
In fact, for those that see the judicial power of striking down statute as somehow an overarching threat to “the will of the people” as found in their so-called “representatives” and what they pass – If the ruling is based on Constitutional Principle, is that not in actuality a demonstration of the superior rights of the people as found in the Constitutional protections and forms themselves?
To quote Alexander Hamilton, in The Federalist No. 78, the Judicial Branch’s ability to strike down statute does not signify superiority over the legislative branch, but that “[i]t only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
IS UGANDA BETTER OFF WITH SUCH A CONSTITUTIONAL FRAMEWORK?
In Uganda, according to media reports, an overwhelming majority of the people supported this “anti-homosexual” statute, and were desiring strict, and in some places, stricter enforcement than we have heretofore seen! Yet, the Ugandan Constitution (although lacking in a calculatively vague “good behavior” provision in relation to the tenure of the judges) clearly established in Article 128 – “The Independence of the Judiciary” – a relatively independent judiciary, in which the compensation “shall not be varied to his or her disadvantage”. Thus, assuming Constitutional guidance to positions of power, what political revenge is open to Ugandan political discretion? None for now. And that is the point!
Of course, the Constitutional Court is not the highest court in Uganda. Thus, the option of appeal to the Supreme Court of Uganda was an option. In fact, the Daily Nation reported on August 9, that the Attorney General had, in fact, filed such an appeal. The statement included in the article was that: “The law was not intended to victimize gay people, it was for the common good”. Have we not heard similar arguments even in local politics here at home (even with the City of Orem in regards to PacSun) – all of which neglect the real meaning of “common”, of course! Yet, as of August 13, the Wall Street Journal is reporting that the Attorney General of Uganda has dropped plans to appeal the ruling.
Perhaps those more inclined towards Ochlocracy or Anarchy instead of Constitutional forms of government should ask themselves whether or not under their forms (or a lack thereof) of government, it is likely that the “minority” in this setting would have their rights protected or not.
George Mason wisely stated that “To protect the weaker from the injuries and insults of the stronger were societies first formed”; and in this case, among other examples, is not the “weaker”, the oppressed minority, more protected as a result of Constitutional forms of civil government?
Since power does not dissolve with the dissipation of civil institutions – is this end more likely with or without a civil government? Or perhaps, in their view, the proven destruction and Democide of the twentieth century illustrates that civil government is not worth the risk. But, of course, that is a topic for another article on another day…